1976 P Cr (PLP)

M. SIDDIQ. J.‑According to the prosecution the brief facts of the case are that Muhammad Salaam complainant at the relevant time was a student of senior cambridge class in Sadiq Public School. Babawalpur and was residing with his father Ch. Rahmat Ali deceased in Model Town B, Bahawalpur. Zahoor Ahmed alias Billi accused alleged to be bad character, was alto resident Of the same Muhalla, Model Town‑B. About three or four months prior to the occurrence, Zahoor accused used to ask the complainant to have friendship with hire but the latter refused to have any such friendship as the accused was reputed to be a vagrant. He also complained to his father Ch. Rehmat Ali deceased who reproached the accused on this account. However, the accused did not refrain from asking the complainant to have friendship with him. At one or two occasions when Zahoor accused had asked the complainant to have friendship with him, co‑accused Mushtaq is also alleged to be with him. On the day of occurrence, namely, 17‑1‑73 at about 5.30 p.m. Saleem complainant when came out of his house, saw that Zahoor and Mushtaq accused were standing in front of his house in the lane. Both the accused called him but he did not go to them. Mushtaq accused is alleged to have thrown a Malta on him which hit on his left foot. Saleem complainant went back to his house and complained to his father who at the time was taking his meals. After hearing his complaint, Ch. Rehmat Ali deceased came out with the complainant and admonished both the accused speaking in a loud voice which attracted the neighbours Abdul Ghafoor (given up PW.) Firdaus Akhtar and Abdur Rahim P. Ws. to the spot. The accused told the deceased that they would teach him a lesson as he was interfering in their affairs. Mushtaq accused then came forward, caught hold of Rehmat Ali deceased and then Zahoor accused inflicted two khanjar blows on the left thigh of the deceased. Saleem complainant while trying to rescue his father also received some minor injuries on his left hand. Abdur Rahim, Firdaus Akbtar P. Ws. and Abdul Ghafoor (given up P. W.) tried to rescue the deceased but they were threatened by the accused not to come near otherwise they would also meet the same fate. After inflicting injuries to the deceased both the accused ran away. Rehmat Ali deceased fell on the ground, Saleem complainant put his injured father in his car and along with other P. Ws. took him to B. V. Hospital, Bahawalpur where he succumbed to his injuries after about twenty minutes. S. H. O. Ghayyur Ali P. W. on receipt of the information on telephone at 6.45 p.m. reached the hospital and recorded the statement of complainant Muhammad Saleem (Exh. P.D). He sent this statement to the Police Station, Civil Lines Bahawalpur, where formal F. I. R. Exh. P. D/1 was registered at 7.45 p.m., The police officer prepared the inquest report Exh. P. R. and injury state ment of the deceased Exh. P. C and despatched the dead body to the mortuary for post‑mortem examination. He also prepared injury statement Exh. P. J of Salaam complainant. He then went to the place of occurrence wherefrom he recovered the blood‑stained earth and sealed ft into a parcel vide memo Exh. P. E. He also took into possession the Malta Exh. P. 8 from the place of occurrence vide memo Exh. P. F. He further took into possession shirt Exh. P. 3, a vest Exh. P. 4, pant Exh. P. 5, a pair of socks Exh. P 6/1‑2 and a pair of shoes Exh. 7/1‑2 belonging to the deceased vide memo. Exh. P.A. He arrested Zahoor accused on 19‑1‑

73. While in police custody he led to the recovery of khanjar Exh. P. 2 from his house where it was lying underneath a box. It was blood stained and the Investigating Officer sealed it into a parcel vide memo. Exh. P. G. Mushtaq accused was arrested on 26‑1‑

73. The police officer also got prepared the site plan Exh. P. H. from Wahid Iqbal Naqsha Navees. After the usual investigation the police challaned Zahoor and Mushtaq accused under section 302, P. P. C. for the murder of Rehmat Ali deceased. They were tried by the learned Sessions Judge, Bahawalpur who vide impugned judgment dated 12‑7‑1972 convicted Zahoor accused under section 304, Part 11, P. P. C. and sentenced him to undergo R.I for seven years. Mushtaq accused was also found guilty under section 304, Part 11, P. P. C. and sentenced to undergo R. I. for five years. Zahoor accused was ordered to pay a fine of Rs. 10.000/‑ as compensation. to the heirs of the deceased under section 544‑A, Cr. P. C. while Mushtaq accused was ordered to pay a fine of Rs. 5000/‑ payable to the heirs of the deceased as compensation under section 544‑A, Cr. P.C. Zahoor accused was also convicted under section 13 of the Arms Ordinance, 1965 and sentenced to undergo R. I. for one year.

2. The State has filed Criminal Appeal No. 64 of 1974 against Zahoor Ahmad alias Billi sad Mushtaq Ahmad convicts with the prayer that both the accused persons be convicted under section 302/34, P. P. C. for the murder of Ch. Rehmat Ali. Zahoor Ahmad convict has challenged his conviction and sentence under section 304, Part II, P. P. C. through Criminal Appeal No. 54 of 1973. He has also filed a separate Criminal Appeal No. 55 of 1973 challenging his conviction and sentence under the Arms Ordinance, 1965. Mushtaq Ahmad convict has filed a separate Criminal Appeal No. 468 of 1973 against his conviction and sentences under section 304, Part

11. P. P. C. Muhammad Saleem complainant has filed Criminal Revision No. 76 of 1973. This judgment will dispose of all these Criminal Appeals as well as the revision petition.

3. Dr. Nazir Ahmad (P. W. 1) on 18‑1‑1972 at 9.00 a.m. conducted the post‑mortem examination on the dead body of Rehmat Ali deceased and found the following injuries on his person: (1) Wound 1 x x muscle deep (stab wound) on the posterior surface of left thigh. Upper moat part was just below the hip. (2) Incised (stab) wound 1 inch x half inch x five inches on the medial side of the lower part of left thigh, 6 inches from the middle anterior surface of the left knee joint, wound extended obliquely upwards and forwards in the muscles femoral artery was cut completely. There was blood clotting all around in the wound. In the opinion of the doctor death occurred due to severe haemorrhage and shock as a result of injury No.

2. Injury No. 1, in his opinion, also increased shock and haemorrhage. He found in injury No. 2 complete cutting of the big femoral artery which caused the haemorrahage and shock in a short time. Both the injures according to him, were ante‑mortem. Probable time that elapsed between the injuries and the death was opined by the doctor to be within an hour while between death and the post‑mortem was 12 to 14 hours. In the opinion of the doctor injury No. 2 alone was sufficient to cause death in ordinary course of nature.

4. Zahoor Ahmad convict when examined under section 342, Cr. P. C. denied the prosecution allegations. In reply to the question if he wanted to say anything else, before the C. M. he stated as under; "I am innocent, I have nothing to say, except that I did it in self defence and I shall make my full statement before the Sessions Court." Before the trial Court when asked why the PWs. had deposed against him he stated as under: "PW Firdaus, Wali, Murid and Abdul Ghafur are related to Rehmat Ali deceased. Only PW Abdul Rahim is not related to the deceased." When asked why the case has been made against him he stated as under: "There was a house of the sister of my mother in front of the house of Rehmat Ali deceased and I used to go and stay there. Rehmat Ali deceased used to ask me not to stay there as I used to tease his daughters. Rehmat Ali deceased used to say me that he bad already committed seven murders and that he shall commit my murder also. Ore widow of Rehmat Ali deceased is residing in Africa. Rehmat Ali deceased told me that he shall murder me and shall then proceed to Africa. Rehmat Ali had told me that he had once committed murder and had then proceeded to Africa. It is for this reason that I had been involved in the case." He however produced no evidence in defence. It may be observed here that Mr. Muhammad Munir Khan, learned counsel for Zahoor convict did not press the above mentioned plea taken up by this convict and admitted his participation in the crime as mentioned above.

3. Mushtaq Ahmad convict also denied the prosecution allegations when examined under section 342 of the Criminal Procedure Code. Before the Committing Magistrate he stated that the P. Ws. had deposed against him on the instigation of his enemy. He further stated that he was innocent and was not present on the day of occurrence and that he was under the treatment of Medical Officer, Karor Pacca. Before the trial Court when asked the following questions he stated as under:‑‑ Q. Why the P. Ws. have deposed against you? A. The PWs. have deposed against me at the instance of Muhammad Khan Joya, who is my enemy. Q. Why this case against you A. At the instance of Muhammad Khan Joya, who is my enemy. Q. Have you any thing else to say? A. I was admitted to the hospital at Khairpur Tamiwali, again stated, that I was under treatment of the Medical Officer, Khairpur Tamiwali, in the house of my friend on the night between 15th and 16th January, 1973. I had fallen ill at Khairpur Tamiwah. On the night between 15th and 16th January 1973, my friend had called the doctor and the doctor continued treating me. I was suffering from meningitis (Sarsam). The doctor treated me and I remained in the house of my friend at Khairpur Tamiwali upto 21‑1‑1973. My friend had sent an intimation in my house in Keror Pacca that I was ill and my brothers came to Khairpur Tamiwali. In defence he produced Dr. Muhammad Azhar Khan as D. W. 1.

6. In support of its case the prosecution produced three eye witnesses, namely, Muhammad Saleem (P. W. 10) Abdur Rahim Khan (P. W. 11) and Firdaus Akhtar (P. W.12). The prosecution also relied upon the recovery of Khanjar Exh. P. 2, the motive and the medical evidence. The trial Court believed the prosecution evidence and convicted and sentenced Zahoor Ahmad and Mushtaq Ahmad accused as mentioned above.

7. It may be mentioned at the very outset that Mr. Muhammad Munir Khan and Mr. M. M. A. Pirzada learned counsel for Zahoor convict have stated at the bar that they do not challenge the conviction and sentences of Zahoor accused under section 304, Part 11, P. P. C. recorded by the trial Court and consequently do not press Criminal Appeal No. 54 of 19

73. As regards his appeal regarding the conviction and sentence under the Arms Ordinance they have stated that the same has become infructuous as the period of imprisonment has already expired. Apart from the admission made by the learned defence counsel the recovery of Khanjar P. 2, the weapon of offence, stands proved through the evidence of Wali Muhammad and Murid Ahmed P. Ws. in addition to the Investigating Officer. Hence even otherwise Crl. Appeal No. 55/1973 merits dismissal. Both these appeals are dismissed as not pressed.

8. As mentioned above Mr. Muhammad Munir Khan learned counsel for Zahoor convict has admitted the time and place of occurrence and infliction of the injuries by his client with Khanjar Exh. P. 2 to Rehmat Ali deceased. He, however, vehemently argues that in the circumstances of the case the offence committed by him falls under section 304, Part II, P. P. C. and therefore supports the judgment of the trial Court. On the ether hand the learned State counsel and the counsel for the complainant contended that it is a clear case of murder and therefore both the accused should be con victed and sentenced under section 302/34 P. P. C. Thus so far Zahoor convict is concerned there is no serious dispute about the facts of the case. In these circumstances the question which falls for consideration is whether the offence committed by Zahoor convict falls under section 304, Part It, P. P. C. as held by the trial Court or it amounts to murder under section 302, P. P. C.

9. In support of their contention learned State counsel Mr. M. A. Hameed and Mr. Asghar Ali Bhatti learned counsel for the complainant have argued that Zahoor convict had already been reprimanded earlier and on the day of occurrence had come to the house of the complainant well equipped with khanjar P. 2 to meet any exigency which may arise. In other words, according to them, his coming armed with a khanjar indicates preparedness on his part. They further urge that there was no provoca tion by the complainant given to him. According to them all the eye witnesses are unanimous that Zahoor convict inflicted injuries after saying aap hamaray mamlat main dakhal daitay hain. Is ka maza chakahain gay . Another argument advanced by them is that the case is not covered by any of the exceptions to section

300. P. P. C. hence the offence does not fall under section 304, Part 11, P. P. C. They also challenge the finding of the trial Court that there was no premeditation but it was a sudden fight. Alternatively according to them the case is covered by illustration (c) of section 300, P. P. C. On the other hand Mr. Muhammad Munir Khan, learned counsel for Zahoor convict has admitted that the case was not covered by any of the excep tions to section 300, P. P. C, but this fact is relevant only so far as Part I of section 304, P. P. C. is concerned and this argument, according to him is not applicable to Part II of section 304, P. P. C. under which his client has been convicted and sentenced. According to him the intention or mens rea is missing in this case. Zahoor convict had no motive so far as the deceased was concerned. He did not know that the deceased would be sitting inside the house or that the complainant would inform him and then he would come out or reprimand the convicts. Mr. Muhammad Munir Khan has further argued that the conduct of his client also shows that he did not cause any injury on a vital part of the body. He further contends that even the knowledge on the part of his client was lacking as he was not expected to know the exact location of femoral artery which was cut and mainly caused the death of the deceased. Both sides have cited various authorities in support of their respective contentions.

10. We have heard the lengthy arguments of the learned counsel for the parties and perused the entire record. Apart from the admission by the learned defence counsel we are ourselves satisfied that the prosecution his proved the occurrence. Out of the three eye‑witnesses Abdur Rahim Khan (P. W. 11) and Firdous Akhtar (P. W. 12) are not related to the deceased nor have any motive against the convicts to falsely implicate them in this case. They are the residents of the same locality. They reached the spot after hearing the noise. They being practically next door neighbours of the deceased, would be most natural witnesses to be attracted to the place of occurrence. Time and place of the occurrence as indicated above, also stand proved and also admitted by Mr. Muhammad Munir Khan, the learned counsel for Zahoor convict. The defence has riot been able to point out anything against these witnesses or otherwise shake their veracity in spite of the lengthy cross‑examination. They are therefore, most independent, truthful and natural witnesses and have been rightly believed by the trial Court. Although Muhammad Saleem PW is the son of the deceased and was the real bone of contention in the matter yet his presence on the spot has also been proved and so admitted by the defence. He also had no enmity against Zahoor convict except the motive alleged by the prosecution. After careful scrutiny of the evidence of these eye witnesses, we are satisfied that the prosecution has established the occurrence.

11. Now, we proceed to consider whether the offence committed by Zahoor convict falls under section 304, Part 11 or under section 302, P. P. C. Culpable homicide is defined under section 299 of the Pakistan Penal Code as under : "Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." Murder is defined under section 300 of the Pakistan Penal Code in the following words: "Except in the case hereinafter excepted, culpable homicide is murder. if the act by which the death is caused is done with the intention of causing death, or Secondly.‑‑If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly.‑If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly.‑If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." When culpable homicide amounts to murder its punishment is provided under section 302, P. P. C. When culpable homicide does not amount to murder its punishment is provided under section 304, P. P. C. As mentioned above, Mr. Muhammad Munir Khan, learned counsel for Zahoor convict has admitted before us that the case of his client does not fall under any of the exceptions to section 300, P. P. C. and therefore does not support the finding of learned Sessions Judge that the occurrence took place without premeditation in a sudden fight etc. According to the trial Court the case was covered by exception 4 to section 300, P. P. C. Apart from the admission of the learned defence counsel, we have given our anxious thought to this aspect of the case. Zahoor convict had already been reprimanded by the deceased and he had come to the house of the deceased after equipping himself with a khanjar. We have ourselves seen this khanjar P.

2. It is quite sharp on both sides with a pointed edge. It is not denied that such a weapon of offence is not kept by an ordinary person with him in normal circumstances. Coming of Zahoor convict to the house of the deceased armed with this kkanjar. shows premeditation on his part. Under exception 4 it is not premeditation alone which is sufficient to attract this exception but further condition is that there is also sudden fight in the heat of passions upon a sudden quarrel. It is well settled now what the word fight, used in this exception implies the use of violence by at least two opposing parties. It: the instant case Zahoor convict gave the blows while Rehmat Ali deceased received the snare, In other wordy there was no use of any force or violence on the part of the complainant party but it was a unilateral act on the side of the accused party. It may be mentioned here that before the Committing Magistrate Zahoor convict in his statement stated as under:‑ ........ that I did it in self defence." He, however, did not claim self defence or any other exception before the trial Court. Even his counsel did not plead any exception.

12. On the other hand Mr. Muhammad Munir Khan learned defence counsel has contended that it is only Part I of section 304 of the Pakistan Penal Code which applies to the exceptions while Part II of this section had nothing to do with the Exceptions. In other words according to him even if au act of an accused person does not fall under any of the exceptions to section 300 still he can he convicted under section 304, Pact II. P. P. C. Now, we have to see whether the exceptions to section 300, P. P. C. are applicable to both Parts of section 304 or only to Part I and not to Part II of that section. We have carefully examined the language used in this section. The heading of section 304 is "Punishment for culpable homicide not amounting to murder." From the heading itself it is quite clear that it covers both the parts. Even otherwise the objection of these parts is to cover two different situations. If an act of an accused falls within either of the clauses No. 1, 2 and 3 of section 300, P. P. C. but is covered by any of the five exceptions to that section then its punishment provided under Part I of section 304, P. P. C. If the act comes under clause 4 of section 300 but is covered by any of the exceptions of that section it will be punishable under Part II of section 304, P. P. C. In Part I "intention" is the dominating factor while in Part II the "Knowledge". We are clearly of the view that an accused person in be convicted under section 304, Part I or Part II of the Pakistan Penal Code only when his case is covered 4 by one or more exceptions to section

300. Since Vie present case is no covered by any of the exceptions to section 304, Part II is not maintainable. In our view the instant case clearly falls under section 302, P. P. C.

13. Mr. Muhammad Munir Khan, learned defence counsel has further argued that intention to kill and the requisite knowledge, bath were lacking. In the instant case and therefore the act of killing the deceased does not amount to murder. According to him this argument is supported by the fact that Zahoor convict was armed with a khanjar only and inflicted only two blows on non‑vital part of the body of deceased anti there was no previous knowledge that Ch. Rehmat Ali deceased would be present at the relevant time inside the house and would be called by the complainant to reprimand him, We do not agree with the learned defence counsel. It is in the prosecution evidence that Zahoor convict had been asking the complainant to have friendship with him but every time the latter refused to fall prey to his lust. Constrained of this the complainant had to complain to his father once earlier who reprimanded Zahoor convict for his undesirable conduct towards his son. In spite of this on the day of occurrence the convict came armed with khanjar P. 2 to the house of the complainant for the same purpose. It is not denied that a deadly weapon, like khanjar P. 2, is not generally carried by an ordinary person to normal circumstances. In this background coming of the convicts armed with khanjar P. 2 clearly shows their design or Intention to kill any one who possibly could stand in their way or otherwise resist them from achieving their abject. Even if the accused did not have a clear intention to kill the deceased earlier, such intention can be gathered at the spur of the moment from the nature of the injuries and the conduct of the assailants. Reliance in this behalf can safely be placed upon Pehlwan's case decided by the Supreme Court of Pakistan, reported as 1969 P. Cr. L. J. 1247 wherein it was held as under :‑‑ "One must be presumed to intend the natural consequences of his act. The intention is to be gathered from the nature of the injury caused and the conduct of the assailant and the surrounding circumstances of the case." 'The words used by the accused namely ; aap hamaray mamlat main dakhal daitay hain is ka maza chakhain gay. are also quite clear to demonstrate their intention. As regards the causing of injury on non‑vital part of the body, the dimension of the injury is sufficient to demonstrate the force with which it was inflicted to the deceased. Injury No. 2 was five inches deep. As mentioned above, we have ourselves examined the khanjar P. 2, the weapon of offence. It seems that almost whole of the blade of the khanjar pierced the thigh through and through. A person‑who causes such an injury with maximum force, in the most ruthless manner, can be presumed to have the knowledge that such injury would, in the ordinary course of nature, cause death. It may be mentioned here that in the opinion of the doctor the death of the deceased occurred due to severe haemorrhage and shock as a result of injury No. 2 and injury No. 1 also increased mock and haemorrhage in injury No. 2, The femoral artery was completely cut which caused haemor rhage and shock is a very short time. According to the doctor injury No 2 alone was sufficient to cause death in the ordinary course of nature. The accused may not know exact location of the femoral artery but it can be safely inferred that a person who caused such a fatal arid grievous injury have the knowledge that either it would cause death or was likely to cause death. Although thigh is, generally, not a vital part of the body yet it is not denied that death can be caused by injury even on non‑vital parts of the body like thigh. The opinion of the doctor in this behalf is quite clear. It is an admitted fact that the deceased died as a result of the injury on the thigh. Keeping in view the nature of the injury, the weapon of and opinion of the doctor we are clearly of view that the accused who were responsible for causing those injuries which resulted in the death of the deceased, are guilty of murder. The mere fact that injury was on the thigh would not change the nature of offence. In this behalf we can safely rely upon the following observations of their Lordships of the Supreme Court made in Muhammad Siddiq's case (1970 S C M R 313) :‑‑ "It was next contended by the learned counsel for the appellant that as the injury was caused on the left thigh of the deceased which is not a vital part of the body, the appellant should be given a lesser penalty of transportation for life. The contention of the learned counsel has not impressed me because the attack by the appellant was premeditated. He was armed with a churri of 9' blade and attacked the deceased with considerable force which resulted in cutting the femoral vein which is a large blood vessel on the thigh. It is, therefore, quite clear that he intended to cause the injury which was found on the deceased person and that injury was sufficient to cause the death in the ordinary course of nature. This case is clearly covered by the third clause of section 300, P. P. C. In the; circum stances of this case the appellant does nut deserve any lenient view. I would, therefore, uphold his conviction and dismiss the appeal."

14. The learned counsel for the defence has tried to argue that the deceased before he was injured must have provoked the accused persons by using abusive language and might have tried to give a beating to Zahoor accused and therefore he may have retaliated and inflicted the two blows. We, however, find no material on the record to report this contention. No doubt the deceased must have reprimanded the accused in harsh language but the question of giving any beating to them could not arise as the deceased was unarmed and an elderly man and before he could do anything he was caught hold of by Mushtaq convict and was inflicted injuries by Zahoor.

15. The prosecution has also relied upon the recovery of bloodstained khanjar P. 2 from Zahoor convict which was taken into possession vide memo Exh. P. (.G. by the Investigating Officer. This recovery is fully supported by Wali Muhammad (P. W. 9) and Farid Ahmad (P. W. 9) in addition to the Investigating Officer. The motive has also been fully proved by Muhammad Saleem complainant. In fact the recovery and motive are not disputed by the learned defence counsel for Zahoor convict.

16. Now, we take up the case of Mushtaq convict. His learned counsel Mr. Muhammad Din has argued that there was no community of interest between the two accused and there was even no friendship between the two. He belongs to Karor Pacca whereas the other accused belongs to Bahawalpur. It is further argued on his behalf that the complainant during the trial has improved the part assigned to him. There was no mention of throwing Malta by this accused in the F.I. R. while in his statement before the trial Court the complainant has attributed this act to him. The learned defence counsel further contends that the part attributed to him, namely, catching hold of the deceased is not supported by the medical evidence as there were no marks of violence on the body of the deceased. Lastly the plea of alibi has been reiterated before us. We have carefully examined his case and considered the arguments advanced by Mr. Muhammad Din on his behalf. It is not the prosecution case that earlier Mushtaq convict was accompanying Zahoor convict when he asked the complainant to have friendship with him. If the prosecution wanted to falsely attribute this thing they could, easily do so. It seems the complainant has given a true account of what actually happened with him. We are fully satisfied that on the day of occurrence he was accompanying Zahoor convict. All the three eye‑witnesses have established his presence on the spot and his participation in the occurrence. This shows his intimacy or friendship with Zahoor convict. If he had no common intention with Zahoor convict why did he accompany him to the house of the complainant for such a nefarious activity. It was he who caught hold of the deceased and then Zahoor convict inflicted khanjar blows on the thigh of the deceased. If he had not done so, Zahoor convict could not easily succeed in inflicting the fatal injury to the deceased. It appears that it was due to the catching hold of the deceased by Mushtaq convict that the injury was caused on the thigh because after catching the deceased he might have become helpless and the upper portion of the body of the deceased may not be available for inflicting injuries while the lower portion of the body was available for attack. By catching the deceased in this manner he had clearly facilitated the commission of the offence by his co‑accused Zahoor. Reliance in this behalf can be safely placed upon Explanation 2 of section 107 of the Pakistan Penal Code which reads as under :‑ "Explanation 2.‑Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." Mr. Muhammad Din, learned counsel of Mushtaq convict, has also pressed the plea of alibi on behalf of his client. He has relied upon the statement of Dr. Muhammad Azhar Khan (D. W. 1) who claims to have treated him. At the relevant time this doctor was working as a Medical Officer. Primary Health Centre, Khairpur Tamiwali. He claims to have issued prescription slips Exhs. D.A.‑D. B. and D. C. for Mushtaq convict. For the first time he had examined him at 1.00 a.m. on the night between 15th and 16th January, 1973. He was suffering from pyrexia of unknown origin and was running a temperature of 105 F. He issued the prescription slip Exh. D. A. Again, he examined him on 19‑1‑73 at 8‑00 p. m. and issued prescription slip Exh. D. B. The last prescription slip Exh. D. C. was issued on 23‑1‑1973. We have carefully examined these prescriptions. They are not on official printed prescription slip of the hospital nor they are on the pad of the said doctor. These are most ordinary pieces of paper of different sizes and shape. Exhs. D. A. and D. B. do not bear even the seal of the doctor. It is only Exh. D. C. which bears a seal under the signatures of the doctor. Exhs. D. A. and D. B. are not even signed or thumb marked by the patient Mushtaq convict. Only Exh. D. C. bears the signature of Mushtaq convict, After considering the entire material available on the record including the defence evidence, we are clearly of the view that the trial Court has rightly rejected the plea of alibi of Mushtaq convict. It is highly unbelievable and improbable.

17. After hearing the lengthy arguments of the learned counsel for the parties and going through the entire material available on the record we have reached the conclusion that the prosecution has proved the guilt of Zahoor and Mushtaq accused under section 302 of the Pakistan Penal Code for the murder of Rehmat Ali deceased. We, accordingly alter their conviction from under section 304, Part II to one under section 302/34 of the Pakistan Penal Code for the murder of Rehmat Ali deceased. As regards the sentence, we find no mitigating circumstance to justify lesser penalty to Zahoor Ahmad alias Billi accused who actually caused the fatal injury to the deceased resulting in his death. Accordingly, we sentence him to death. He shall be hanged by the neck till he is dead. He is also fined a sum of Rs. 10,000 which shall be paid as compensation under section 544‑A, Cr. P. C. to the heirs of the deceased. As regards Mushtaq Ahmad accused we award him lesser penalty as he himself did not inflict any injury to the deceased but only facilitated the commission of the offence. He is, therefore, sentenced to imprisonment for life. He shall also pay a sum of Rs. 5000 as compensation to the heirs of the deceased. In default of payment of fine he shall undergo further R. I. for two years.

18. The upshot of the above discussion is that Criminal Appeals No. 54 and 55 of 1973 tiled by Zahoor convict are dismissed as not pressed. Criminal Appeal No. 48 of 1973 filed by Mushtaq Ahmad convict is also dismissed. Criminal Appeal No. 64 of 1974 filed by the State is accepted. Since we have accepted the Criminal Appeal No. 64/1974 filed by the State. Criminal Revision No. 76 of 1973 filed by Muhammad Saleem complainant stands automatically disposed of. Order accordingly,